Yesterday, President Barack Obama made the surprising prediction that the Supreme Court would uphold the health care law and further labeled those who would vote against it as judicial activists. I am not sure what he is basing his prediction on, but the comment on judicial activism is both unfounded and unwise.
With most observers saying that five justices, including Justice Anthony Kennedy, appeared to be opposed to the law on federalism grounds, the prediction of victory lead some to allege “insider information.” Fingers were pointed at Justice Kagan who some (including myself) felt should have recused herself because she was Obama’s Solicitor General at the start of litigation to defend the act and received emails on that effort. However, there is no basis to make such an accusation against Kagan who I believe would not commit such an egregiously unethical act in telling Administration officials what the initial vote was in the conference last Friday. Obama may simply be engaging in hopeful thinking (it is after the Administration that ran on “Hope”) or his continuing belief that the cases favor the Administration. It also seemed to set up his next (and much more disturbing statement) on judicial activism.
Obama stated that:
“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress . . . And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”
Of course, all acts found to be unconstitutional were generally the product of democratic process. The point of an independent judiciary is to serve as a bulwark against abuses by the majority. Obama’s statement about judicial activism is equally wrong. There are good faith arguments on both sides of this question and one does not have to be a judicial activist to vote to strike down the law on federalism grounds. I support national health care but raised the same federalism concern before Congress passed the law. I do believe that the law violates federalism guarantees while I respect my friends with opposing views. It is simply unfair to characterize a vote against the law in advance as judicial activism — a term that is often used by people whenever a court rules against their view of the law. To put it simply, it was a cheap shot and beneath a president.
Moreover, it was unwise at this time. This comment is not going to appeal to any of the justices, particularly not Justice Kennedy. The Administration needs Kennedy’s vote and he previously voted to strike down two federal laws on the federalism grounds — the very judicial activism described by the President. Additionally, the Administration is trying to convince Chief Justice Roberts and Justice Scalia to moderate aspects of any ruling. They are likely to view this comment as directed at them. Roberts was ticked by Obama’s statement during his State of the Union address where he criticized the Court. While I felt Roberts failed to condemn the actions of Justice Alito at that address and felt that Alito’s actions were far more problematic, Roberts felt the President was irresponsible. Now, he is condemning any vote against the law in advance as activism. Even if Roberts and Scalia (or Kennedy) were inclined to vote against the individual mandate, they may be on the fence on questions like severability.
The message can easily be taken by justices as a threat that, if you vote against my law, I will denounce you publicly as judicial activists. I realize that this is an election year, but I believe a president should transcend such petty attacks. In this case, it is not just petty but inimical to the Administration’s case.
Source: Yahoo
Jill,
Similar point made earlier. Look at the consequences: mandate=insurance sales. Killing mandate=new law with maybe single payer.
Result; keep mandate say the insurance companies, and their money talks loud.
Bob,Esq:
“What about that ever so rare chestnut; the “just this one case” rule?
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Time to check on your wallet or your rights whenever you hear that line.
Duck! It is a drone!
It’s quite a clear warning to them. With his selp-proclaimed powers of execution without trial, their lives hang on his whim for the day.
As JT has previously noted, he is all for expanding Bush’s executive powers more than Bush dreamed of—-and yet he still gets my money to campaign with.
Better a crazy emperor who believes himself good than a bought President who knows he’s bad.
When it is repeatedly 5-4 you have to think it is political persuasion and leanings and not reasoned legal thought.
And Thomas should have recused himself. His wife has been a vocal antagonist of the Affordable Care Act and has made a living lobbying against the law as the founder of the Tea Party group Liberty Central.
Im sorry Prof. Turley did not include that in his reference to Justice Kagan.
From my new medium the radio a commentator gave his opinion,and that was ” Judge Roberts is a “Corporatist” and will find it hard to turn 30 million new policys away from the insurance industry”
You heard it here.
Mespo: “Those who think that this SCOTUS decides based on esoteric legal principles and stare decisis have never read Bush v. Gore.”
What about that ever so rare chestnut; the “just this one case” rule?
Jill: “I do love that quote: “…that an unelected group of people would somehow overturn a duly constituted and passed law….” you mean like that executive administrative group of people who decides which American citizen they will kill today?”
Touche!
Tony raises a valid tactical point.
http://www.nytimes.com/2012/04/03/us/justices-approve-strip-searches-for-any-offense.html The same republican appointed justices on the court that will probably strike down the mandate approved this yesterday.
I think Obama cannot lose in saying this. Either the law is upheld, which makes it look like his threat was heeded, and he has a big accomplishment to point at for his campaign.
Or the law falls, and Obama has the campaign threat that health care is in danger, only a Democrat can be trusted to get it back on track, and if Romney is elected he will move the court even further to the right at his first opportunity.
I imagine Obama would LOVE to run on health care again, it would raise a billion dollars in campaign cash, and just like last time I do not think he really cares how the fight turns out, as long as it generate a raging river of donations along the way (and it would, for both parties). Plus it is a distraction from wars, the economy, and the gutting of civil liberties.
Sometimes Obama should keep his mouth shut.
I like the idea of a law that reins in the insurance companies, but really dislike the part that requires everyone to buy their overpriced product. A greatly enlarged VA that is open to all is my choice.
“prediction of victory lead some to allege “insider information.”
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Those who think that this SCOTUS decides based on esoteric legal principles and stare decisis have never read Bush v. Gore.
In this climate, it’s Pollynnnish to think deal making isn’t going on in chambers just as it is across the street and maybe even with the gang from across the street. In Washington, if there are negotiations, then there are necessarily leaks.
That may be the way it’s always been as I’m told by a reliable historian that John Marshall had the decision in Marbury v. Madison written before the case was ever filed in his court.
Franklin Roosevelt took on a highly conservative Supreme Court.
I do love that quote: “…that an unelected group of people would somehow overturn a duly constituted and passed law….” you mean like that executive administrative group of people who decides which American citizen they will kill today? LOL
There is a very good analysis of the difference between Obama care and health care on naked capitalism. It’s a reasoned discussion. What is going on here is just a campaign statement to rally the troops to a very flawed policy for ordinary people but an excellent policy if one is an insurance company kind of “person”.
here’s the link: http://www.nakedcapitalism.com/2012/04/marshall-auerback-and-randy-wray-america-needs-healthcare-not-health-insurance.html
I predict that information intelligence may also have been involved in Obama’s prognostication!
“No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either.” Jeffrey Toobin
Reblogged this on danmillerinpanama and commented:
Was President Obama affirming that Supreme Court rejection of ObamaCare, in whole or in part, should and will focus his reelection campaign against the Supreme Court as an unelected, unrepresentative branch of Government that improperly rejected the will of two elected branches? What other purpose might he have had?
“Just two years ago, the idea that conservatives might win the health-care fight in Court rather than the Senate seemed absurd. Just seven years ago, the notion that Republican jurisprudence would be defined by aggressive economic judicial activism seemed even more fantastical. But just as there are few atheists in foxholes, there aren’t a lot of justices of any persuasion willing to walk away from a chance to overturn a duly-passed law that they personally detest.” Jonathon Chait.
One wonders, what exactly are judges supposed to do? The Supreme Court is consulted when the law is ambiguous and somebody needs to decide whether it is Constitutional or not.
Obama already claims it is Constitutional for him to put citizens to death by decree without any due process (or secret “due process” that does not involve the citizen in any way), shall he next claim that the President can also declare laws Constitutional by executive order?
Might as well.
While I agree that it was not good politics to make the prediction, I hope he is right. Justice Scalia still hasn’t read the bill so it will be easy for him to strike it down so I am not as confident as the President.